Judgment:
Ferdino I. Rebello, J.
1. Petitioners in the instant case are employed with Respondent No. 4 Institution. The Respondent No. 4 Institute was an existing institute as on 15.7.1981. The Petitioners herein were also in employment on the said date. The Respondents have not denied the date when the Petitioner joined service. The age of retirement was 60 years.
2. Pursuant to recommendations of the Fifth Pay Commission, the Government of Maharashtra in terms of the recommendations of the A.I.C.T.E. made applicable the pay scales along with some other conditions to the staff employed in technical institutions in the State of Maharashtra. One of the conditions was that the age of superannuation be reduced from 60 years to 58 years. The Petitioners are aggrieved by the G.R. of the Government to the extent that it reduces the age of superannuation.
3. Petitioner relies on Section 4 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and more specifically Section 4 thereof which reads as under:
4(1) : Subject to the provisions of this Section, the State Government may make Rules providing for the minimum qualification for recruitment (including its procedure), duties, pay, allowances, post retirement of other benefits and other conditions of service of employees of Private Schools and for reservation of adequate number of posts for Members of the Backward Classes:
Provided that, neither the pay nor the rights in respect of leave of absence, age of retirement and post retirement benefits and other monetary benefits of an employee in the employment of an existing Private School on the appointed date shall be varied to the disadvantage of such employee by any such Rules.
It is submitted on behalf of the Petitioners by the learned Counsel, that as they were in employment as on 15.7.1981, it was not open to the State Government to have reduced the age of superannuation to their disadvantage. The G.R. it is submitted are purely administrative instructions and are contrary to Section 4 of the Act and to that extent the said G.R. would not be binding in so far as those employees who were in service as on 15.7.1981. The learned Counsel has placed reliance on the judgment of the Division Bench of this Court which was examining a similar issue in the case of Dilip Krishnaji Kulkarni v. State of Maharashtra and Ors. decided on 13.4.2009 in Writ Petition No. 6030 of 2008 with another petition.
4. On the other hand on behalf of the Respondent State, it is sought to be contended that the Government G.R. is a package scheme. The package was issued in terms of the recommendations of the 5th Pay Commission and it is not possible to separate the pay structure from the age of superannuation. It is pointed out that in Writ Petition No. 1152 of 2006 in the case of Professor Khalil-Ur-Rahman Ansari v. Union of India and Ors. decided on April 07, 2008, the learned Division Bench noted, that another petition being Writ Petition No. 2455 of 2003 decided on 27.8.2003, the Government G.R. Dated 27.2.2003 had been upheld. In that context, it is pointed out that considering the upholding of the G.R., the subsequent Division Bench in Dilip Kulkarni (supra), at the highest ought to have referred the matter to a larger Bench for consideration.
5. We have heard the learned Counsel for the parties and the submissions that have been advanced before us. In the first instance, we are concerned only with those employees who were in the employment of a recognized institute as on 15.7.1981. We are not concerned with the class of employees who are employed on or after 16.7.1981. In so far as the class of employees employed on or before 15.7.1981, their conditions of service are covered by Section 4 of the Act. Proviso to section is specific in as much as that on the appointed date, there can be no variation in the age of retirement, post retirement benefits and other monitory benefits to the disadvantage of an employee by any rules. In other words, what the proviso sets out is that it is open to the Government to grant more advantageous conditions of service including pay revisions but it is not open to make any conditions of service which would be at disadvantage to such; employees. The retirement at the age of 58 when the age of retirement was earlier 60 years, would clearly be disadvantageous.
6. We find that the learned Division Bench in Dilip Kulkarni (supra) has noted that the learned Bench at Nagpur did not take into consideration Section 4 and the proviso thereof and consequently the said judgment which was passed without considering Section 4 would render those judgments per incuriam at least to the extent of those employees who were in service of recognized institutions as on 15.7.1981. In our opinion, therefore, once the earlier judgment is held to be per incuriam the learned Division Bench in Dilip Kulkarni (supra) was not bound to refer the matter to larger Bench. We agree with the view taken by the learned Division Bench in Dilip Kulkarni. In the light of that the following order:
7. Petition made absolute in terms of Prayer Clause (b) in so far as those employees who were in service in the recognized institutions as on 15.7.1981. In so far as Petitioner No. 1 is concerned, he will be reinstated and will also be paid wages for the period during which he was not in service. We make it clear that the Petitioners and similarly situated persons considering what we have held would be entitled to be placed in the revised pay scales in terms of Clause V of G.R. From 1.1.1996 but will be entitled to pay in the revised pay scale from 27.2.2003. All other terms and conditions of the service will be effective from 30.12.1999.
The learned Counsel pray for the stay of the order. In view of the judgment of this Court which is binding on the respondents dated 13.4.2009, application for stay rejected.